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California 8, San Francisco 8, Mr. Fisher 2, Nighted 2, U.s. 2, Peskin 1, Porpt 1, Mr. Pacheco 1, Ms. Amil 1, Appellant 1, The City 1, Marijuana Card 1, Mr. Peskin 1, Hwang 1,
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  SFGTV2    [untitled]  

    February 13, 2013
    7:00 - 7:30pm PST  

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a barrier to block balance licenses. the california appeals court recently at the end of december last year said that in interpreting laws it said "we must seek to ascertain and effectuate the purpose of the legislature interpreting each provision in a manner consistent with the purpose in light of the objectives to be achieved" so here you have a san francisco ordinance that says "the purposes to regulate fortuneteller so the city and county can thoroughly investigate fraud" so the police department investigated her, reissued the permit from year to year. she has a dmv identification. even though it's expired her identity didn't change after it expired and i
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think that a fair application of this law is that the ordinance requirement is met. i mean the police department could still have done an investigation to update the previous one if it wanted but just to block it because she's unidentified where they have a record of hear going back to 1979 with a misdemeanor arrest and took into account when they granted the permit. it shouldn't be a ground for denying the permit and using expired id is consistent as we set out in the brief with the laws in many contexts, more medicare, u.s. pass porpt. can you use a expired passport to prove id and again because it's expired doesn't mean your identity has changed. only a
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few san francisco business permit laws leave the entire process to the police department and even fewer call for government issued id with the permit application. those that don't require a government id include licenses for charitable solicitations, new photographer, even escorts service. >> >> and it's not ordinary commercial activity but first amendment and the u.s. supreme court held repeatedly where there are restrictions to carry out the first amendment rights should be construed and all reasonable laws are preserved with that, but there is another matter i need to bring to your attention tonight. and that is a week ago today i over nighted to this board and to the police department lawyer on the case a motion for your consideration
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it to provide a important new fact that arose since this appeal was filed and recently the state of california and san francisco county issued a picture id medical marijuana card for mary, an id that unquestionably meets the ordinance referenced and that you have a government id. however the board's executive director called me the next morning and said she was barred under your rules of allowing the president or any member of the board even to see or let alone to consider the motion to submit the information in a few page memo. i was told i could orally present this to you tonight, and the papers are still here. i think mr. pacheco has the files, and i would hope that you would review them before you decide. i will just put the id here
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which may get on your screen or something, but it's an exhibit -- >> could you blow that up a little bit? >> someone knows. >> they have to pick it up. >> there it is. >> the copies are with the papers that i submitted that i hope that you will review. i was again surprised it couldn't be considered. mary's medical marijuana application in supporting -- >> can you pause that? i am comfortable in receiving -- plus we have an issue. >> my screen is not working. >> given this is new information i am uncomfortable receiving the memo. do we have copies? >> yes. >> so the board is accepting these documents? >>i am accepting, yes. >> okay. i'm crossing out
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"rejected". >> and the police department has a copy; right? okay. >> and a copy of the id is in this packet? >> yes. it's an exhibit. >> and you recognize by putting it into evidence it becomes a public record? >> yes. >> it's health related information. >> through true. >> just making sure. >> yes it was over nighted to the police representative as well. >> okay. >>i am starting your time again. you're at 32 seconds. >> this application in supporting medical and other documentation were filed as required by state law with the county agency that processed it over a two week period and issued the id card. i understood after i sent it to the police department and had a conversation with the representative he thinks it was
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improperly or shouldn't have been issued. i don't know the grounds and in my reply i will speak to whatever he raises but it's a valid id. it was issued after the appeal was filed and i sent it in a week ago yesterday and regrettably you're just getting it this evening but it is an exhibit. >> thank you. >> so i will -- without time look forward to coming back for three minutes. >> thank you. we can hear from the police department now. >> good evening commissioners. i am mark [inaudible] and i'm an attorney in this matter. >> could you speak into the microphone? >> good evening commissioners. i am representing the police department in this matter and before this commission to request that you deny the
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appeal and uphold the police department's decision. first thing i would like to talk about quickly is the constitutional arguments made in the brief. i think it would be inappropriate for the commission to decide on those issues. those issues should be left for the courts. this legislation was vetted through the city attorney's office in 2003 and full board -- the full board of supervisors and they looked at the case law that was cited in appellant's brief and i am sure they considered the case that was mentioned in the city of a zeusa and dealt with a prohibition of fortuneteller and this is a different issue. this deals with the first amendment issue. if the appellant wants to pursue those to pursue them in the courts. next we would like to discuss about the interpretation of 1304. the police department
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believes that interpreted that section to requires either drivers license or passport or other government id and the real issue is government id and believes it want entered it fairly and sensibly and when they look at id they look at id that is valid and that's all we're looking for. as a matter of fact the fortuneteller went into legislation in 2003 per the legislative history and the permit was granted to the appellant in november 2003 so the standard that was used back then requiring government id is the same that was applied in 2010. the appellant was given two years to find valid government id and she was unable to do so. the police department nor the stare nor the board of supervisors changed the
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standards for identification. that was changed by the federal government. in 2005 they passed the real id act and made it stricter for people to get a state identification and that was in response to the highjackers of 911 getting a false identification. public policy demands that the police department do whatever it can to protect the public. now the reason the fortuneteller ordinance was breat created is because the da's office received numerous complaints of people taken advantage of, loss of savings, jewelry, so forth. people going to fortuneteller are pretty much vulnerable and the police department wants to make sure when they do a background check it's that person, and therefore public policy would require the interpretation of government identification to be valid.
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also the permitting process would be subject to ash trairness and confusion if we allow someone to come before any permitting application process and give an expired identification plus a bunch of letters or other documentation that's not really id. i would think it wouldn't be fair to the public who are applying for permits, not just observe the police department but other 'll other agencies and the san francisco county records office requires valid id before they issue a identification card so this standards not unique to the police department. it's used in other government agencies as well. regarding the marijuana card. that's kind of an issue. the appellant did get a state of california medical marijuana identification
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card. we don't accept that as valid identification. why? it's not on the board now but you see it's it has a photo and id number. that's it. so it has a website there. if you run the id number it comes back and it just says "valid". that's not sufficient government identification. also the department of public health accepted the appellant's expired california id as proof of identity, so the police department will not be able to accept that. in fairness to the public as a valid identification . in conclusion the police department asks this commission to deny the appeal or in the alternative continue this hearing to allow the appellant to arrange for valid government
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identification submitted. i will answer any questions. >> i have a question. do you know as whether the process of getting a medical marijuana card there is a background check conducted? >> i don't have that information. >> okay. maybe i will ask that question of the counsel for the appellant. thank you. >> two questions. one is in the briefs there is discussion about san francisco's medical cannabis card, id card. >> yes. >> that's accepted? >> we're not accepting the cannabis -- well, medical marijuana card as valid government id because it doesn't have identifying information on it other than a photograph and a number and that number when you run it comes back to just saying it's valid. the purpose of the card so it can be shown to a
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law enforcement officer and show that the bearer of the card has a right to possess marijuana. >> right. that's the state one you're referring to? san francisco is the same? >> no. let me just clarify. san francisco processes applications. the applications then go to the state and the state then issues the identification card. under the state statute or under senate bill 420 which created the legislation for this it says "proof of identity". now, a manager at the department of public health told me they accept valid id but somebody else said "we really don't check the expiration date on the id that is submitted" and the reason they didn't is because it's not part of the process. they have a very am standard.
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to identify. the police department can't reasonably accept that to prove someone's identity because the standards are really loose. >> what about physical identification process like fingerprinting? >> that's a good question. fingerprints -- if a person puts down their name and let's say they're fingerprinted like life scan. the appellant was life scanned. if they weren't fingerprinted anywhere else those go to the person's name so you won't get anything different. it's what the person was originally fingerprinted on and that's the problem. the standards for identity are a lot more rigorous now and we're just requiring the same standard that we did in 2003. the federal government has required the states to be more rigorous before issuing identification cards. that's why the
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appellant can't get a valid government identification but more peerntly i want to emphasize if this commission decides that expired identification is okay with letters you will have a standard that is really arbitrary. what is enough? it's a letter from a former supervisor? is it a balance license? what standard are we going to use? >> >> and that would be unfair to the public at a whole. >> do you have any -- >> i do and the issue is background check and you stated the primary reason it requires a valid id so you can do a background check and issue a license for fortuneteller. >> that's correct. that's one of the reasons. >> which makes infinite sense to me, so if a medical marijuana card issued by the state requires a background check to
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be issued wouldn't it be valid for your licensing purposes? >> that's a good question. a thorough and complete background check starts with knowing that your backgrounding the person who is applying for the permit. if that person's identity is something different the background check has no merit, so it's very important -- it wouldn't have any merit because you would be backgrounding somebody who is not the real person applying for the permit. what i am getting at is even if the state of california and i don't think they do a criminal background check. i don't know that for sure but i don't think they do. even if they use a loose standard to identify the applicant for a marijuana card then they did a background check on somebody who may not be that person and that's what the
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police department is sensitive to. >> i understand that. just to me rationally speaking it wouldn't make sense to have a higher standard for fortuneteller than medical marijuana use. that's just me. >> i can speak to that if you give me a minute. the marijuana card is issued primarily -- it wouldn't make sense to do a criminal background check because that is more of a medical issue, so they issue the card so that the bearer of that card can show it to an officer if they stop them and find marijuana on their car or person and the director of public health said in the training those cards shouldn't be considered as general government identification because of the nature of it and there is just a photo and a number. it won't maybe sense. >> to me that is the question
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and you can't answer it definitively for me. thank you. i appreciate that. >> i have a question. in the brief the appellant states that because she had not timely obtained automatic renewal that's when you required a new application and investigation, so but for the fact that a fee wasn't paid she would have her license to do fortuneteller? correct? is that a correct or not correct statement? >> i can't comment. i didn't do the research -- >> so you can't deny or affirm. >> whether that is the case. >> okay. >> commissioner assuming for argument that is the case. >> okay. >> still she allowed her permit to expire. that's the thing. she allowed it to expire and if the standards have changed where we're using more rigorous -- >> you said it's the same
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standard. >> the identification for the state of california to get an id card changed in 2005. >> oh i see. >> the police department expected -- >> so the standard changed? >> not by the police department and valid identification that didn't change. the state of california requires certain documentation before issuing id -- that changed. >> i see. thank you. that's helpful. >> great. thank you. we can take public comment on this item. we're going to take public comment mr. fisher and you will have rebuttal. mr. peskin. >> president hwang and commissioners i guess this is the night for former
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supervisors. in 2003 in my role then as a public servant and thank you for your public service and as a member of the board of supervisors i was indeed approached by the district attorney's office and took me a couple of years that we needed a permitting scheme for cases of fraud in fortuneteller and i authored said legislation. i am very familiar as i set forth in my sworn declaration which was in the san francisco municipal police code requiring such a permit. i am quite familiar with the legislative history and the intent of the law. section 13.04 is very clear about the intent and the intent is to allow the police department to do proper investigations of an applicant by the department.
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that was done in this case. i have known ms. amil for over 20 years and she has recited at 247 columbus avenue for all of those years. she is known to the police at central station. her history is superlative. if you look at my legislation and i am disappointed that you didn't, and you will see that the legislation requires a background check, a background check she went through and passed and by the way the legislation also says that the department can deny in the case of a felony or two or more misdemeanors so she complied with that law. she has been an upstanding member of the community. yes after 2011 the law changed and i believe this
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is a manifest injustice. i never appeared before this body and didn't appear before the peal peal for over a decade but when i see manifest injustice like this i feel compelled to ask you to grant the appeal and allow this woman to practice her livelihood. thank you for listening to my comments commissioners. >> thank you. is there any other public comment? seeing none we will move into rebuttal. mr. fisher. >> the medical marijuana card is a government issued id. that's all the ordinance says. you need to present a government issued id. it has a photo of her. there say number on it and we offered to the police department to match the number with the name we would
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cooperate. we put it on the record tonight. it's a government issued id and in fact if you look at page five of the respondent's brief there say reference to the medical marijuana card as an scpasm of something that she couldn't get and therefore couldn't prove identity or something. it's at the bottom of page five. the investigation that was done thoroughly before it was issued again had reference to the 1979 file they had on her, so for decades and decades she's been known to the police department and this is kind of bizarre what we're talking about is the question of identity, proof of identity. the police department knows and they have thoroughly investigated. they took fingerprints and issued the permit and during each year that it was renewed they had
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continuing authority to do investigations, and they could do it with respect to the new application, but chose not to rather standing on the argument her identity isn't presented. as to the real id issue that's discussed at length in the respondent's brief i don't think has any application here. it has to do with kind of state id might be usable for certain kinds of federal jobs. it doesn't go into effect for several years and it doesn't go into effect if the person is over a certain age and mrs. a amil is over that age and has no application to this proceeding so i would hope that you fairly and reasonably apply the facts to the ordinance requirement, and reverse. thank you. >> counselor, why did your client let her license lapse?
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>> there was some mix up in when the fee was due, and in fact not so long after when it was realized it was due mr. amil went to the -- i don't remember all of the details, but he went to the office where you pay fees and brought a check, and there was some mix up what it was applied for, but the bottom line it wasn't paid timely in 2010, so they required the new application, and they wouldn't process it because of the id thing and they kept continuing it for a long time and she made efforts to get it. she was obviously motivated to engage in her work and has not been able
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to do so. >> okay. >> we believe that a proper investigation starts with knowing who the person is. in 2003 if she was able to obtain government id the state was comfortable knowing it was issued to a particular person. i disagree with the attorney regarding what the real identification act's purpose was. obviously california changed its standard to the point where they don't know who she is, and they're not comfortable issuing a government id. again i implore you to give a reasonable interpretation to what government identification means in statutes and it means valid identification. a card that is expired really has no
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value. as far as supervisor peskin we have a lot of respect for them but he doesn't speak of the whole board at the time the legislation was passed. i talked to margaret -- if i get the name right, bomb grard ner and she was the city attorney that drafted the legislation and it was her interpretation it meant valid identification. as far as the history of the appellant not having problems. she does have a criminal record for the type of offensives that the legislation was passed to prevent want as far as the interpretation of 13.04 if you look at it really wants the background to cover addresses, accurate birth dates, prior business locations. it requires quite a bit, and that starts
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with knowing who the applicant is and the best standard for that is valid government identification. if you can't get that how can the police department feel comfortable granting her a permit or doing a background investigation? and the fact that the appellant was able to get a permit under a losing standard, less rigorous doesn't mean the police department should accept that now, and season as far as your decision here today will have the effect of interpreting government -- what government identification is for other permit holders as well, so we implore upon this commission to give it that definition, a concommon sense, real interpretation. even though this seems compelling like i said we're not opposed to continuing this hearing so the applicant can make other efforts to get government
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identification and there are ways to do that i am sure. it may cost some money but there are ways to get that identification. do you have any questions? >> this maybe an aside, but are you aware to get a passport you need to have a birth certificate? >> yes. >> now -- today you would have to have a birth certificate to get a passport. >> i think in my brief mentions that a passport -- there are certain requirements showing proof of birth, like who you are. i guess i can look at that very specifically if you want and get that information. >> okay. >> but the argument that you can use an exfired passport. that's because to get a passport you have this rigorous standard, birth date, showing where you live